The Implications of Digital Property While the Twenty-First Century Rises From the Horizon

May 24, 2010
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The Digital Millennium Copyright Act, enacted in 1998, is one of the most controversial documents to ever pass through government. The DMCA, though its intentions are to protect the economy, stifles science and hinders consumers of technology from effectively using or accessing their own property; abuse by large corporations such as Apple, Microsoft, and the RIAA (Record Industry Association of America) also disrupt the economic balance.
The DMCA grants immense power to copyright holders in order to protect their intellectual rights, but the act neglects the consequences of such unbalanced power which actually hinders research and the purchaser from effectively using their property. Though the act “includes a number of exceptions for certain limited classes of activities” such as the “reverse engineering of software [and] encryption research,” (The DMCA is not Effective) these exceptions have been too narrow to be of real use. Circumventing and defeating security measures is essential for computer data encryption to evolve by solving mistakes and finding loopholes in previous software. The scientific research done in this field is of upmost importance in the creation of stronger, smarter computer systems that aid in the protection of private data. Unfortunately, due to DMCA legal liabilities pressuring websites, scientists, and students, research in the field is essentially placed on a standstill which will “ultimately result in weakened security for all computer users (including ironically, for copyright owners counting on technical measures to protect their work),” (The DMCA is not Effective). Thus, by such limitations, the DMCA bars proper access to the rights specified in the First Amendment by making mere discussion or creation of circumvention code liable to prosecution. Dmitry Sklyarov, a Russian programmer, was jailed and then detained in the United States for five months “after speaking at the DEFCON conference [annual hacker convention] in Las Vegas,” (The DMCA is not Effective). Sklyarov was not prosecuted for “infringing any copyright, nor of assisting anyone else to infringe copyrights. His [...] crime was [...] simply [creating a tool that] other people might use [...] to copy an e-book without the publisher’s permission,” (The DMCA is not Effective) he was jailed for simply creating a tool that others could use to. The actual purpose of Sklyarov’s program was to allow users to maintain use of their purchased e- books on other platforms or if the particular device used for reading the e- books becomes obsolete. Sklyarov’s case is a realistic example of the sheer power copyright holder have under the parameters of the DMCA. The grounds for his prosecution are similar to being jailed for creating a crowbar: it can be used for breaking into cars if used inappropriately, but that is not the creator’s intended purpose for the product. The notion of being liable for arrest by simply writing code, or computer instructions, which was not intended to steal a copyrighter’s work is devastating to the computer science community and at the same time preposterous. Scientific research on any copyrighted software can be, apparently, arbitrarily considered illegal on the basis that it might lead to copyright infringement. Proponents of the DMCA argue that the document upholds the doctrine of “fair use:” a principle that states that copyrighted material can be legally used without permission as long as it does not diminish the material’s market. But, persistently, the federal courts have ruled that the “DMCA [...] prohibits the creation or distribution of [DVD back-up software], even if they are crucial to fair use,” (The DMCA is not Effective). This prevents the consumer from many possible legitimate uses such as backing-up easily scratch-able disks, watching purchased movies on devices that do not carry a DVD drive, and bypassing the annoying commercials that typically preface most movies. But, the DMCA also curtails scientific research and education: without the ability to load movies onto computers, professors, students, and scientists can not analyze movies effectively, if at all. The restrictions that the DMCA brings upon consumers, researchers, and educators is balanced by, advocators of the act and the media industry claim, the protection and stability the act provides for the economy. But, in reality, the DMCA does more to harm the economy than protect the immense profits that software giants, recording companies, and hollywood firms make.
One of the main reasons the DMCA ever came to be an argument, was for the protection of America’s digital economy. But it’s overly restrictive measures, many times, provide no economic benefit or advantage for copyright holders. The RIAA, the Recording Industry Association of America, for example, believes the DMCA is justified because it companies enforce tactics to prevent music piracy: what the RIAA claims as detrimental to their profits and the economy in general. The IPI (Institute for Policy Innovation) has found that “global music piracy costs the U.S. economy $12.5 billion in losses and 71,060 jobs annually,” (Groc). The IPI finding illustrates the damage that the DMCA was created to avoid, but its sources should be considered. The research conducted is based on the assumption that those who have pirated music would have bought it if they had not been able to obtain the music illegally. In reality, a study by Harvard Business School professor Felix Oberholzer-Gee “found that file sharing has no significant effect on CD sales in the U.S.,” (Groc). In order to take IPI’s assumed case seriously, the research must produce defendable concrete evidence, which is clearly not the case as proved by Oberholzer-Gee. The DMCA clearly ushers too much power to copyright holders without any tangible economic benefit. In fact the act has actually cause harm to the economy. The DMCA has frequently been used as a weapon to destroy innovation and competition by companies who wish to maintain dominance in their market. For example, Apple’s iTunes music market is used to legally purchase music for their proprietary iPod digital music devices. Unfortunately, in efforts to destroy piracy, Apple has locked songs purchased from the iTunes music store under DRM, or Digital Rights Management, which restricts all iPods from playing copyrighted music solely purchased from the iTunes music store. This restricted tie between the iPod and iTunes virtually turns the iTunes music store into a monopoly for those who own iPod devices. In attempts to enter the large iPod music market, and thus create competition against iTunes, RealNetworks announced, “its ‘Harmony’ technology, which was designed to allow music sold be Real’s digital [music] store to play on Apple iPods. [...] Within days, Apple responded by [...] threatening legal action under the DMCA. [...] In the end [...] Apple’s threats [...] led Real to give up its efforts,” (The DMCA is not Effective). In a similar case, Microsoft abandoned its PlaysForSure format (created in order to allow the Microsoft music market to cater to multiple devices) in order to create an iTunes-esque market for its proprietary Microsoft Zune MP3 players. Unfortunately for former PlaysForSure customers, their purchased music is not playable on new devices due to DRM. Not only do the customers lose their purchased property, but the “DMCA makes it illegal, punishable up to five years of jail on the first [offense], for third parties to offer utilities to,” regain use of their purchased music (The day music dies). Instead of protecting customers, the DMCA makes it illegal for customers to properly access their property while allowing copyright holders to create market monopolies in the name of the law. Not only does this make purchasing music expensive by destroying competition, but it also increases the temptation for customers to pirate music: why go through the hassle of purchasing expensive music that is not even the customer’s to keep? Ironically, the DMCA is used as justification for disrupting the very market balance that it aims to uphold.
The DMCA hinders science and effectively makes innovation difficult due to its unnecessary restrictions. In its current state, the Digital Millennium Copyright Act stifles the progression of America into a true digital age. In order for the law to successfully manage digital property, a major revision to the act is imperative.

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mdaniel said...
Jun. 1, 2010 at 1:13 am
Beautifully written
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